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Ms. M. v. Falmouth School Department

United States District Court, D. Maine

May 31, 2016

Ms. M., individually and as parent and legal guardian of O.M., a minor, Plaintiff
v.
FALMOUTH SCHOOL DEPARTMENT, Defendant

          ORDER AFFIRMING IN PART AND REJECTING IN PART RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

          D. Brock Hornby United States District Judge.

         On March 4, 2016, the United States Magistrate Judge filed with the court, with copies to counsel, his Recommended Findings of Fact and Conclusions of Law in this Individuals with Disabilities Education Act (IDEA) case. Recommended Findings of Fact and Conclusions of Law (ECF No. 27) (“R. & R. Dec.”).[1] The plaintiff filed an objection to the Recommended Decision on March 21, 2016. I heard oral argument on May 3, 2016.

         I have reviewed and considered the Recommended Decision, together with the entire record; I have made a de novo determination of all matters adjudicated by the Recommended Decision; and I agree in part and disagree in part with the recommendations of the United States Magistrate Judge (and therefore the Hearing Officer whose decision he recommended affirming).

         The Hearing Officer and the Magistrate Judge were correct in treating the student’s October 31, 2013, Individualized Education Program (IEP) as specifying use of the SPIRE[2] literacy program, R. at 2643; R. & R. Dec. at 11; in finding that the school department failed to provide SPIRE to the student that school year, R. at 2664-2665; R. & R. Dec. at 11-13; and in ruling that the school department’s explanation that the mother objected to SPIRE (she was not convinced that it was “research based” as the IDEA requires) did not justify the school department’s decision not to provide SPIRE after it had been included in the IEP, R. at 2664-2665; R. & R. Dec. at 35; see 20 U.S.C.A. § 1414(d)(1)(A)(i)(IV) (2010 & Supp. 2015); 34 C.F.R. § 300.320(a)(4) (2015) (specialized services that are provided to children with disabilities pursuant to the IDEA are to be “based on peer-reviewed research to the extent practicable”).

         I disagree, however, with the Hearing Officer’s and Magistrate Judge’s characterizations that the school department’s failure to provide SPIRE was a mere “procedural violation.” R. at 2665; R. & R. Dec. at 32. The IDEA requires the school department to provide the student with a “free appropriate public education” (FAPE). The statute provides a clear definition of a FAPE:

The term ‘free appropriate public education’ means special education and related services that- (A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C.A. § 1401(9) (2010 & Supp. 2015) (emphasis added). Given those enumerated requirements for a FAPE, failure to provide special education and related services in conformity with the IEP as subsection (D) requires is a substantive violation, not a procedural one. The IDEA recognizes many procedural requirements, and this is not one of them.[3] See Joaquin v. Friendship Pub. Charter Sch., No. 14-01119 (RC), 2015 WL 5175885, at *7 (D.D.C. 2015) (holding that there was no basis for the hearing officer’s conclusion that a failure to provide transition services as required by the IEP “was a mere ‘procedural violation’ of the IDEA”).

         When a “procedural violation” occurs, the IDEA addresses explicitly how to assess it:

(ii) Procedural issues

In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies-
(I) impeded the child’s right to a free appropriate public education;
(II) significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public ...

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